JUN 11, 1996

Ms. Marcia Beach

Executive Director
Advocacy Center for Persons with Disabilities, Inc.
2671 Executive Center Circle West
Suite 100
Tallahassee, Florida 32301-9071

Dear Ms. Beach:

Your letter to Attorney General Janet Reno has been referred

to me for response. Your letter indicates that the Florida State
legislature is considering a proposal to reallocate funding for
such care of individuals with developmental disabilities from one
program ("ICF/DD") to another (Home and Community Based Waiver
Act) without changing the type of services provided, and to cut
the amount of funding. You allege that this action would violate
the Federal medicaid statute and the Americans with Disabilities
Act (ADA). Please excuse our delay in responding.

The issues that you raise primarily involve Florida's

administration of the Federal Medicaid program. Inquiries and
complaints regarding the implementation of Medicaid program
requirements should be directed to the Department of Health and
Human Services at:

Health Care Financing Administration

Department of Health and Humans Services
230 Independence Avenue, S.W.
Room 5400 Cohen Building
Washington, D.C. 20201.

Title II of the ADA requires States to administer services,

programs, and activities, "in the most integrated setting
appropriate to the needs of qualified individuals with
disabilities." 28 C.F.R. S 35.130(d). In some circumstances it
may be a violation of the ADA for a State only to provide
services to an individual with a disability in an institutional,
as opposed to a community, setting. Helen L. v. Didario, 46 F.
3d 325 (3d Cir. 1995).

cc: Records, Chrono, Wodatch, McDowney, Hill, FOIA

 n:\udd\hille\policylt\beach.ltr\sc. young-parran

01-04285

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An individual with a disability may take action under title

II by filing a private suit in Federal district court or by
filing a complaint with the Department of Justice or the
appropriate "designated agency." The regulation implementing
title II designates the U.S. Department of Health and Human
Services (HHS) as the agency responsible for investigating
alleged violations of title II by providers of health care and
social services. The address for filing complaints with HHS is:

Office for Civil Rights

Department of Health & Human Services
330 Independence Avenue, S.W.
Room 5400 Cohen Building
Washington, D.C. 20201.

I hope this information is helpful to you.

Sincerely,

John L. Wodatch
Chief
Disability Rights Section
01-04286
Advocacy Center
FOR PERSONS WITH DISABILITIES, INC.
2671 EXEC. CENTER
CIRC. W. * SUITE 100
TALLAHASSEE, FL
32301-5092
(904) 488-9071
(904) 488-8640 (FAX)
April 29, 1996 (800) 342-0823 (VOICE)
(800) 346-4127 (TDD ONLY)
3101 MAGUIRE BLVD.
SUITE 150
ORLANDO, FL 32803
(407) 897-2760
The Honorable Janet Reno (407) 897-2763 (FAX)
Office of the Attorney General (800) 408-3074
U.S. Department of Justice (VOICE OR TDD)
10th and Constitution Avenue, NW 2901 STIRLING ROAD
Washington, DC 20530 SUITE 206
FT. LAUDERDALE, FL 33312
(954) 967-1493
Dear Madam Attorney General: (954) 967-1496 (FAX)
(800) 350-4566
(VOICE, TDD OR ESPANOL)

Florida is preparing, in the last few days of the

legislative 1996 session, to grossly violate the provisions
of both the ICF/DD and Home and Community Based Waiver Acts
(HCBW). They are doing so in a way that is harmful to
individuals with DD and that violates the rights of
individuals with DD under those acts and under the
Americans with Disabilities Act. They are doing so in
violation of the terms of Florida's waiver approved by the
U.S. Department of Health and Human Services in 1992.

Florida is planning to eliminate all ICF/DD funding

used to finance nursing home-type supports in private
institutions and totally replace such funding with a
greatly reduced amount of funding under the Home and
Community Based Waiver. They are totally disregarding the
fact that the purpose of the HCBW is to allow individuals
to move from institutional and nursing home settings such
as most ICF/DD's in Florida, into inclusive community
settings. Florida will not be moving the individuals into
the community - just changing the funding. Because of the
drastic reduction in funding by the Florida Legislature (a
cut of over 35 million dollars from the Developmental
Services program), the same services that are presently
available to the individuals under the ICF/DD program will
not be available to them. Most individuals will be left
without adequate supports in the same 64 bed nursing home-
type ICF's and other similar structures.
Further violated will be the right of individuals
under the ICF/DD program to be informed about the Home and
Community Based Waiver and given a choice of either
institutional (ICF/DD) services or home and community based

01-04287​
The Honorable Janet Reno
April 29, 1996
Page 2

services. As you know, Federal law does not allow a state

to force individuals into the HCBW program. This is
particularly harmful to individuals when there are
insufficient funds to provide necessary services under the
HCBW.

The Advocacy center supports the phasedown and closure

of public and private institutions that confine individuals
with developmental disabilities. However, this proposal
does not provide for phasedown or closure of any
institution(s). It simply uses funds approved for that
purpose. The legislature is scheduled to Sine die in three
days.

We urgently request that you notify Florida of this

imminent violation which we believe could jeopardize all
medicaid funding to Florida.

Sincerely,

Marcia Beach
Executive Director

MB:mkk

cc: Governor Lawton Chiles

Senate President Jim Scott
House of Representatives Speaker Peter Rudy Wallace
HRS Secretary Ed Feaver
HRS Dept. Secretary Charles Kimber
HRS Dept. Asst. Secretary Donna Allen
Parker Thomson, Esq., President, Board of Directors
Board of Directors
Dexter Douglas, Esq., General Counsel to the Governor

01-04288